Wichita Attorneys for one of the nation's best-known abortion providers filed a motion Monday asking for a change in the presiding judge, an abortion opponent who once accused the doctor of "defying legal and moral authority."
Sedgwick County District Judge Anthony Powell previously served in the Kansas House and was among the Legislature's most vocal abortion foes, once calling abortion "the slaughter of the innocents." Shortly after the enactment of a 1998 law restricting late-term abortions, he accused Dr. George Tiller of breaking it.
Court papers, filed Monday in Sedgwick County District Court, do not give a reason for the request to remove Powell from all pending and further matters. An attorney for Dr. George Tiller declined to elaborate.
"Kansas law prohibits us from stating the grounds in the initial motion, and thus we can't comment further," defense attorney Lee Thompson said Monday.
But the court filing represents a complete about-face from Friday's hearing when Thompson, when questioned by Powell on whether attorneys objected to him presiding in the case, replied, "We trust the court's judgment in that regard."
Defense attorney Laura Shaneyfelt said Monday that Thompson's comments at the hearing concerned whether Powell ought to allow amicus briefs to be filed. She said Thompson meant he trusted the court's judgment in not being overly influenced by a brief filed on behalf of his former legislative colleagues.
Attorney General Paul Morrison declined to comment Monday on the defense motion, his spokeswoman Frances Gorman said, adding later that prosecutors have no current plans to ask for the judge's removal.
Tiller was charged with 19 misdemeanors in June. Morrison alleges the doctor failed to get a second opinion on some late-term abortions from an independent physician, which the late-term law requires. Tiller maintains his innocence, and his attorneys are challenging the law.
Powell had an hourlong hearing Friday on the law's constitutionality but doesn't plan to rule until at least next month. If Powell upholds the statute, Morrison's office can move toward a trial. If Powell strikes it down, a trial will be delayed until appeals of such a ruling are resolved.
The case was assigned to Powell by Judge Gregory Waller, the county's chief criminal judge. Waller said he didn't know about Powell's past legislative activities and picked him because he was "the most available" for a hearing.
Powell did not return a message left at his office Monday for comment.
But Michael Hoeflich, a law professor at Kansas University, said Powell is entitled to his anti-abortion opinions as long as he judges the case fairly.
"Judges are going to be human - they are going to have opinions," he said. "I don't think that is an ethical issue."
Hoeflich said normally a judge is asked to remove himself from a case because of a conflict of interest such as prior representation or because of a financial interest - and it does not seem that either of those two things are in play in this case. He added, however, that defense attorneys are doing exactly what he would expect them to do.
Defense attorneys likely will base their request for a new judge on a canon in the American Bar Association that calls for a judge to disqualify himself when his impartiality might be reasonably questioned.
"It is not simply that he is anti-abortion," Hoeflich said. "It is they believe they have evidence he is particularly prejudiced against Tiller."